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Education Department Responds to State Waiver Story

The U.S. Department of Education has emailed me a two-page letter in response to my story about states requesting waivers that would allow them to temporarily reduce the amount they give to districts for special education programs.

The Individuals with Disabilities Education Act allows states to request a waiver of their special education funding support if the state is going through unforeseen financial problems. The communication from the Education Department gives some of the legal background about the department's authority to grant such waivers and describes some of the factors it will take into consideration when considering waiver requests.

Some interesting nuggets:

  • West Virginia has requested a waiver that is currently under review. I knew that Iowa and Kansas had been granted waivers and that South Carolina had applied for one, but not about West Virginia. I don't know the amount of the waiver request; I'm gathering that information.

  • In weighing a waiver request, the feds will consider a state's "compliance and performance record" in implementing the IDEA. Presumably, the department would take a dim view of a waiver request from a state or jurisdiction that has had continuous compliance problems. (Take, for example, the District of Columbia.)

  • Officials will also consider "other sources of revenue" such as federal funds and stimulus funds. The letter says that the existence of such funds might help mitigate the effects of a waiver. But for how long? The so-called "funding cliff," when education stimulus money runs out, is coming up.

One advocate I spoke to for my article, Katherine Beh Neas, with Easter Seals, and the Consortium for Citizens with Disabilities' education task force, said she was concerned that there seemed to be no clear standards that the department is following with these requests, especially because almost all the states are in some degree of financial distress. If a state facing a 10 percent cut gets a waiver (like Iowa), what about states that are facing smaller, but real, losses of revenue? Could they get a waiver as well?

The department says that these waiver requests will be considered through a "very careful process," and it appears that officials don't want to get any more specific than that. A clue to the department's thinking can be found way back in the 2006 regulations that gave more guidance to states in how to implement the 2004 special education law. In the regulations, the department responded to questions and comments from the public.

Comment: One commenter requested that Sec. 300.163(c)(1), regarding waivers for maintenance of State financial support for exceptional or uncontrollable circumstances, provide examples of what would be considered a precipitous and unforeseen decline in the State's financial resources.

Discussion: We decline to limit the Secretary's discretion in these
matters in the abstract. The Secretary makes the determinations
regarding these waivers on a case-by-case basis and given the facts and
circumstances at the time such a request is made.

What was once abstract has become quite real.

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